(August 10, 2001) 2001 (TLS)125260

2001-DLT-93-777 :: 2001-AD (Del)-5-685

KRISHNA PARKASH Vs. Dilip Harel Mitra Chenoy

B. N. CHATURVEDI

( 1 ) THIS is an appeal arising out of a Judgment and decree dated 5/1/1996, passed by the Court of an additional District Judge, Delhi in a suit for ejectment and mesne profits.

( 2 ) FACTS emanating from the pleadings are that late dr. Suraj Prakash was a tenant in respect of entire ground floor, in addition to one garage and two servant quarters, of 20, Sunder Nagar, New Delhi at a monthly rent of Rs. 1,000. 00 exclusive of water and electricity charges. The said premises were leased out to him by Smt. Shanta Simha Chenoy, the owner of the premises, on 2/11/1963. By a notice dated 10/10/1969, the tenancy of late Dr. Suraj Prakash was terminated w,e. f. 30/10/1969. Late Dr. Suraj prakash responded to the notice with his reply dated 27. 10. 1969 thereto and did not vacate the premises.

( 3 ) ON 30/4/1971, an eviction petition under Section 14 (1) (B) and (J) of the Delhi Rent Control act, 1958 (for short rent Act ), was filed by smt. Shanta Simha Chenoy against late Dr. Suraj Prakash. During the pendency of the eviction petition, Dr. Suraj prakash died on 6/6/1972. He was survived by smt. Krishna Prakash (widow), appellant No. l, Satikshan prakash (Son), Ms. Renu Prakash (unmarried daughter) appellant No. 2, and Ms. Nandini Prakash (daughter ). On the death of Dr. Suraj Prakash, an application under order XXII Rule 4 CIVIL PROCEDURE CODE was made by Smt. Shanta Simha chenoy for bringing the legal representatives of the deceased tenant on record. Eventually, the eviction petition was dismissed on 26/2/1973 by the Additional Rent Controller concerned on the ground that after the death of the tenant, the statutory protection enjoyed by him after termination of his tenancy came to an end and as, such protection was personal to him and could not extend to his legal representatives, the proceedings stood abated.

( 4 ) ON 25/10/1972, a suit No. 456/72 was filed by Smt. Shanta Simha Chenoy for injunction and damages against the legal representatives of late dr. Suraj Prakash stating that they were not entitled to inherit the statutory protection which had been available to the deceased tenant. After the dismissal of the eviction petition as abated, the suit was amended to introduce therein the relief of possession against the legal representatives of the deceased tenant. The suit was decreed by Prithvi Raj, J. on 31/3/1978. The decree so passed was confirmed by a Division Bench of this Court in rfa. (OS ). 10/78 on 2/2/1980. A SLP was filed before the Supreme Court on 18/3/1980. The Supreme Court allowed the appeal and vacated the impugned judgment by an order dated 10/12/1986 on the ground that since the widow (appellant No. 1 ) was a tenant on the date of institution of the suit, the civil court had no jurisdiction to entertain the suit and pass a decree for possession.

( 5 ) SMT. SHANTA Simha Chenoy died on 28/12/1981. She bequeathed the suit property, by means of a will dated 3/1/1980, in favour of her son dilip Chenoy, plaintiff/respondent. Among the legal heirs of Smt. Shanta Simha Chenoy. , there is no dispute in regard to testamentary disposition of the suit property in favour of the plaintiff/respondent.

( 6 ) THE plaintiff/respondent filed a suit for ejectment and recovery of mesne profits on 23/7/1987 against the defendants/appellants. The suit was contested by the defendants/appellants raising various pleas, which need not be detailed here. Such pleas would be taken note of and dealt with in the course of discussion to follow hereinafter. The suit was decreed by learned Trial judge vide his judgment and decree dated 5/1/1996. The appellants/defendants preferred the present RFA against that judgment and, decree. In pursuance of a direction vide order dated 24/4/1996 to give specific findings on Issue No. 6a, the learned Additional district Judge returned his finding on that